' On 28-6-1984 at 4-15 hours Omar Khitab, r/o village Zarwali, made a report at Police Station Topi, Tehsil Swabi, District Mardan, that on 27-6-1984 at 21-00 hours while he and his wife Mst. Zamro Jan, alongwith their daughters Mst. Farkhanda and Hamida, were sitting in the house preparing to have their meals, Amir Baroz son of Sher Akbar, Usman son of Muhammad Amin and Islam Yousaf son of Ghulam Yousaf, residents of the same village, came there armed with fire-arms, that all the three opened fire on the complainant party as a result of which Mst. Zamro Jan was hit on the shin. The informant claimed that the occurrence was seen by him and his two daughters named above. He charged all the three accused for the crime. Previous blood feud enmity between the parties was mentioned as motive for the crime and the delay in lodging the report was because of the fear of the enemies at night time. Since Mst. Zamro Jan was alive at that time, though unconscious, the offence mentioned in the first report was one under section 307/34, P.P.C., but upon her death it was converted into section 302/34, P.P.C.
2. Amir Baroz accused is said to be absconding but Usman and Islam Yousaf accused were apprehended by the police after four days of the report. They applied to the Illaqa Magistrate for bail which was refused. They then applied to the Court of Session for the same purpose and the learned Additional Sessions Judge, Mardan at Swabi granted them bail. The complainant has moved this petition for cancellation of bail.
3. Mr. Jehanzeb Rahim, Bar-at-Law appeared on behalf of the petitioner and M/s. S. Javed Bukhari and Muhammad Ashraf Jadoon, Advocates appeared on behalf of respondents Nos.1 and 2. The State was represented by Mr. Muhammad Amin Khattak, Advocate. The learned counsel were heard and the record perused.
4. The learned Additional Sessions Judge allowed bail to respondents Nos. 1 and 2 on the following grounds:-- "From a cursory perusal of record, it reveals that according to the P.M., report Mst. Zamro Jan died due to shock and extensive bleeding. If she was provided proper medical aid and the bleeding was tried to be stopped, she could survive. Moreover the statement of Dr. Salim recorded under section 161, Cr.P.C., is very much important to the effect that he was brought to inject, but he was not informed about the injury on the leg. The investigation agency is also having a view, due to general information, that there is possibility of the incident having taken place in some other way."
' The learned counsel for the petitioner contended that the aforesaid grounds could not have been considered by the Additional Sessions Judge at the bail stage, nor were those grounds sufficient for allowing bail to respondents Nos.1 and 2. He further contended that the observation made by the learned Additional Sessions Judge in his impugned order could prejudice the prosecution case at the trial. His other contention was that there was a direct charge of effective firing against respondents Nos.1 and 2 and the eye-witnesses named in the first report supported the charge. He also argued that plausible reason was mentioned in the first report for lodging the -report with delay. He submitted that the discretion exercised by the learned Additional Sessions Judge was improper and the order made by him may be recalled.
5. The learned Advocate representing the State, however, did not support the learned counsel for the petitioner. He contended that in the circumstances of the case it was a proper exercise of discretion by the learned Additional Sessions Judge and that he would support the impugned order.
6. S. Javed Bukhari, Advocate appearing on behalf of respondents Nos.1 and 2 contended that there was a contradiction between medical evidence and the first report and the occurrence being at night, the identification of the accused was not possible from the distance shown in the site plan between the assailants and the complainant party. He contended that the delay was not properly explained and that the background of previous enmity between the parties could be the cause for false charge.
7. I agree with the learned counsel for the petitioner that the grounds on which the learned Additional Sessions Judge granted bail to respondents Nos.1 and 2 were not proper. I also agree with him that the learned Additional Sessions Judge should not have expressed his opinion, in the manner he did, on the point which constituted first ground for allowing bail to the accused. Those observations would, therefore, not be taken into consideration at the time of trial. However, this being a night occurrence and the prima facie subsequent additions in the site plan in different ink about the electric bulbs and other circumstances of the case show that it was a case of further inquiry. I would, therefore, not interfere in the order made by the learned Additional Sessions Judge, though on different grounds. This petition is, therefore, rejected.
Petition rejected.